Next, Democrats to declare spending a quiet evening at home by yourself on Friday night "a form of sexual activity"

Democrats and their allies say that despite its novelty, the insurance mandate falls within the definition of interstate commerce. The Senate bill cites data to show the importance of the health-care industry to the national economy and the damage caused by leaving millions of Americans uninsured.

Requiring the uninsured to buy coverage will "create economies of scale" and "is essential to creating effective health-insurance markets," the bill says.

Republicans argue that while Congress can regulate economic activity, the failure to buy insurance amounts to inactivity -- and the Constitution doesn't give Congress power to regulate that...

Democrats say that failing to buy insurance is a form of economic activity, because it shifts costs to others in the marketplace through higher insurance premiums, and onto the public when the uninsured use emergency rooms to obtain primary care.

Now, the fact that the interstate commerce clause of the Constitution is routinely interpreted to mean that the government can do anything whatsoever is hardly news to me, and this actually isn't all that big a jump. Growing grain on your own land for your own use was declared part of "interstate commerce" in Wickard v. Filburn because growing grain instead of buying it from somebody else affects the overall market price of grain; thus, the idea that abstention from commerce can itself be regulated as commerce is not at all new.

I think the U.S. Constitution is valuable for rhetorical purposes, as a way of pointing out that the government routinely ignores its own supposed laws, but I have little confidence in the idea of constitutions as an effective, lasting check on government expansion. By the time we reached the point where growing grain on your own land for your own use could be regulated as "interstate commerce," the idea that America had a limited government restricted by law to particular functions enumerated in a written constitution became a bad joke.

Despite that, I still find this remarkable for how brazen and explicit this is: Merely existing is interstate commerce. With every moment, you are abstaining from innumerable transactions that you potentially could have engaged in, and each abstention has economic consequences that might conceivably have some effect outside your own state. There is very little in life that doesn't become "interstate commerce" under this principle.

My failure to buy Pearl Jam albums or nonalcoholic beer or Mack Bolan novels has an effect on interstate commerce; if more people bought those things, the greater economies of scale would lower unit costs. If we take the reasoning justifying the mandate seriously, is there any reason I couldn't be required by law to buy these things if Congress wanted me to? The government could give enormous subsidies to favored industries without spending a dime.

Let's take it another step. Each person's decisions on what to abstain from buying are affected by how much money they have, which in turn is affected by what sort of job they have and how much they work. Imagine a worker who has the option to work additional hours for overtime pay but chooses not to, or a highly paid doctor or attorney who hates his job and decides to live a more modest lifestyle so that he can work in a field that is less lucrative but more personally fulfilling, or a mother who switched to part-time work so she could spend more time with the children. All of that affects interstate commerce, so why shouldn't the government tell people where and how much to work?

The previous paragraph may sound rather outlandish; it certainly does to me. That's no bar to plausibility. I can still remember when the idea of the government controlling fat and sugar consumption was talked about as a joke, meant to ridicule the government's attacks on smoking by taking the principle of health paternalism to what was, at the time, an absurd conclusion. Only a decade later, something that was "obviously" silly is now firmly in the mainstream.

I don't claim that the scenario above invariably will happen- and if it does, it's not likely to be that blatant. However, I do believe it is a quite plausible result of the sort of reasoning being used to defend the mandate, not just a wacky reductio ad absurdum; after all, that would require me to believe that there are expansions of state power too obviously silly to be seriously entertained by mainstream American politicians, and if history is any guide that's a losing bet.

I'm sure anyone who is claiming that not buying insurance should be regulated as "interstate commerce" would vehemently deny any desire for a government that can dictate the minutiae of personal consumption described above, much less much less one that controls whether people can change jobs. Most of them would probably mean it, too. That makes no difference at all, once the precedent is turned loose.

1 comment:

Anonymous
said...

"magine a worker who has the option to work additional hours for overtime pay but chooses not to, or a highly paid doctor or attorney who hates his job and decides to live a more modest lifestyle so that he can work in a field that is less lucrative but more personally fulfilling, or a mother who switched to part-time work so she could spend more time with the children. All of that affects interstate commerce, so why shouldn't the government tell people where and how much to work?"

Isn't it fairly obvious that this is the general direction "they" seem to be steering us towards?

We all know total control is the desired end result. Total control means total control.